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The state of West Bengal and the Calcutta High Court today vehemently opposed the Central Selection Mechanism for the subordinate judiciary, which is being mooted by the Supreme Court.
Senior Advocates Rakesh Dwivedi and Jaideep Gupta, who appeared for the state government and the High Court respectively, made some scathing submissions before a Bench of Chief Justice JS Khehar and Justices AK Goel and AM Khanwilkar.
The Supreme Court had suo motu initiated the case for evolving a central selection mechanism for the subordinate judiciary. It had clarified in the earlier hearings that the mechanism will not affect the current rules prevalent in individual States but will only bring in a single common body to conduct exams for different States. It had also made it clear that even reservation policies in different States shall be maintained and the instant exercise was only for centralising the selection process to make selection a regular, recurring feature.
Subsequently, Amicus Curiae, Arvind Datar had submitted a Concept note to the Court proposing that a centralised examination, viz. the District Judges Recruitment Examination, be held for all States.
The Court had then sought the response of High Courts and States regarding the same.
When the matter was taken up today, Amicus Curiae Arvind Datar told the Court that certain High Courts had raised objections to the proposal. These included the High Courts of Calcutta, Chhattisgarh, Sikkim, Assam, Jammu & Kashmir, Rajasthan and Andhra Pradesh & Telangana.
The Court then proceeded to hear the submissions of the West Bengal government. Dwivedi argued that the selection can be done only by high courts as per the mandate of Article 233 of the Constitution.
“The selection can be done only by high court judges. What Your Lordships are envisaging now is vesting that power of high court with a selection committee. That cannot be done. That is undertaking a pure legislative exercise and is not permissible.”
Chief Justice Khehar responded by saying that he had met the Chief Justices of all high courts and had taken them into confidence. He said,
“Except for one or two objections, all were in agreement. It is not that it is prompted by the government or the Supreme Court. It is a broad-based collective decision.”
Dwivedi responded by saying that the Chief Justices cannot speak on behalf of the full high court with respect to a Constitutional power. He replied,
“Views of the Chief Justice are not the views of the full court. Chief justices saying something in a conference does not mean those are the views of the full court.”
He further said that the Supreme Court is exceeding its jurisdiction by taking up this matter.
“Today it is selection committee, tomorrow it might be selection criteria. Where will it end? Because Parliament is not doing something does not mean Supreme Court will have to step in. Ultimately, things have to be reconciled in a Constitutional way.”
Interestingly, he also submitted that the very fact that the issue was being heard on the judicial side was a giveaway.
“The fact that this is being heard on the judicial side is a recognition that the Supreme Court cannot do it on the administrative side and Parliament cannot do it under Constitution. So this is a way to push this down [unclear] by way of a judicial decision.”
Dwivedi then dealt with Article 233 stating that the scope of “selection committee” is envisaged by Article 233.
“Scope of ‘Selection Committee’ is envisaged by [the word] ‘consultation’ under Article 233. Everything from selection to recruitment is to happen as per the Rules framed by High Courts.
If at all Your Lordships want to do something, there has to be an interpretation of Article 233 by a Constitution Bench.
There is no need to rush into an area which is unclear. This is no way to do it. There should be a well thought-out mechanism instead of doing something in a hurry.”
After Dwivedi concluded, Senior Advocate Jaideep Gupta began his submissions for the Calcutta High Court.
Gupta began his arguments by stating that the concept note submitted by Datar violates Article 233 and impinges upon the Basic Structure of the Constitution in two respects:
“Your Lordships’ scheme is such that it makes a mockery of Article 233. Article 233 has a positive and a negative part.
Positive part is that the Governor shall consult the High Court while negative part is that Governor shall not consult anyone other than the High Court.
By bringing in Central Selection Committee, the mandate under 233 will be violated. This is the question of independence of each and every High Court in this country.”
Gupta then proceeded to cite two judgments of the Supreme Court to buttress his case. He was on his legs when the court rose for the day.
The case will now be taken up on Monday at 2 pm.
Image of Rakesh Dwivedi taken from here.